(HC) Stuart v. St. Andre

[7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 ANTHONY D. STUART, No. 2:22-cv-02298-DAD-AC (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, GRANTING 13 v. RESPONDENT’S MOTION TO DISMISS, DISMISSING HABEAS PETITION 14 ROB ST. ANDRE, Warden, WITHOUT PREJUDICE, AND DECLINING TO ISSUE A CERTIFICATE OF 15 Respondent. APPEALABILITY 16 (Doc. Nos. 1, 11, 18) [17] 18 Petitioner Anthony D. Stuart is a state prisoner proceeding pro se with a petition for a writ 19 of habeas corpus pursuant to 28 U.S.C. § 2254 . The matter was referred to a United States 20 Magistrate Judge pursuant to 28 U.S.C. § 636 (b)(1)(B) and Local Rule 302. 21 On March 1, 2023, respondent moved to dismiss the pending petition as premature 22 pursuant to the decision in Younger v. Harris, 401 U.S. 27 (1971) because appellate proceedings 23 in state court were ongoing and his judgment of conviction was not yet final. (Doc. No. 11.) On 24 October 2, 2023, the assigned magistrate judge issued findings and recommendations 25 recommending that respondent’s motion to dismiss the pending petition on Younger abstention 26 grounds be granted without prejudice. (Doc. No. 18.) Specifically, the magistrate judge 27 concluded that because petitioner’s appeal from his underlying state criminal conviction was still 28 pending when he filed the pending petition for federal habeas relief, application of the Younger 1 abstention doctrine required dismissal of this federal habeas action without prejudice. (Id.) 2 The pending findings and recommendations were served on all parties and contained 3 notice that any objections thereto were to be filed within fourteen (14) days from the date of 4 service. (Id. at 5.) To date, no objections have been filed and the time in which to do so has now 5 passed. 6 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C) and Local Rule 304, this 7 court has conducted a de novo review of this case. Having carefully reviewed the entire file, the 8 court finds the findings and recommendations to be supported by the record and proper analysis. 9 Accordingly, respondent’s motion to dismiss the pending petition without prejudice will be 10 granted. 11 Additionally, the court declines to issue a certificate of appealability. A petitioner seeking 12 a writ of habeas corpus has no absolute right to appeal; he may appeal only in limited 13 circumstances. See 28 U.S.C. § 2253 ; Miller-El v. Cockrell, 537 U.S. 322 , 335–36 (2003). Rule 14 11 of the Rules Governing Section 2254 Cases requires that a district court issue or deny a 15 certificate of appealability when entering a final order adverse to a petitioner. See also Ninth 16 Circuit Rule 22-1(a); United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997). The court will 17 issue a certificate of appealability “if jurists of reason would find it debatable whether the petition 18 states a valid claim of the denial of a constitutional right and that jurists of reason would find it 19 debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 20 U.S. 473, 484 (2000). Here, reasonable jurists would not find the court’s decision to dismiss the 21 petition to be debatable or conclude that the petition should proceed further. Thus, the court 22 declines to issue a certificate of appealability. 23 Accordingly, 24 1. The findings and recommendations issued on October 2, 2023 (Doc. No. 18) are 25 adopted in full; 26 2. Respondent’s motion to dismiss the pending petition (Doc. No. 11) is granted; 27 3. The petition for writ of habeas corpus (Doc. No. 1) is dismissed, without 28 prejudice; 1 4. The court declines to issue a certificate of appealability; and 2 5. The Clerk of the Court is directed to close this case. 3 IT IS SO ORDERED. * | Dated: December 8, 2023 Dab A. 2, oyel 5 DALE A. DROZD ‘ UNITED STATES DISTRICT JUDGE